Excerpt:.....tribunal to recount the votes. 28. before making a recount of the ballot papers the learned munsiff did not record any order that he was satisfied that in the special circumstances of the case the recount was necessary in the interest of justice. the court must be prima facie satisfied on the material produced before it about the truth of the allegations made for a recount and a recounting cannot be made only with a view to fish materials for declaring the election to be void or for indulging in roving inquiry. 29. in view of the authoritative pronouncement of the supreme court, i have no hesitation in holding that the learned munsiff erred in law in ordering recounting of the ballot papers without first recording that he was prima facie satisfied on the material produced before him..........on the material produced before it about the truth of the allegations made for a recount and a recounting cannot be made only with a view to fish materials for declaring the election to be void or for indulging in roving inquiry.29. in view of the authoritative pronouncement of the supreme court, i have no hesitation in holding that the learned munsiff erred in law in ordering recounting of the ballot papers without first recording that he was prima facie satisfied on the material produced before him regarding the truth of the allegations made for a recount.30. for the reasons stated above, the writ petition is allowed, the order of the learned munsiff dated 18-8-1979 is set aside and the election petition is dismissed.31. looking to the facts and circumstances of the case, there.....

Judgment:ORDER

P.D. Kudal, J.

1. This writ petition is directed against the order of the learned Munsiff Behro, District Alwar, dated 18-8-1979.

2. The brief facts which are relevant for the disposal of this writ petition are that elections for the post of Sarpanch, Gram Panchayat Doongroli were held on 5-2-1978. Ram Niwas, the present petitioner, was declared elected having secured 72l votes as against Sardar Singh who secured 718 votes, Sardar Singh feeling aggrieved filed an election petition before the Munsiff. The contention of Sardar Singh was that 5 ballot papers which were cast in his favour were wrongly counted in the ballot papers cast in favour of Ram Niwas. His other contention was that 7 ballot papers which were liable to be rejected were wrongly counted in favour of Ram Niwas. He also contended 15 ballot papers which were cast in his favour were wrongly rejected by the Returning Officer. Under 1he.se circumstances, Sardar Singh pleaded that Ram Niwas has been wrongly declared to be elected Sarpanchof the Gram Panchayat Doongroli. He also pleaded that if there is a proper recount he shall be declared elected. Sardar Singh also pleaded that initially the Returning Officer declared him elected, but on recount he declared Ram Niwas elected. His contention is that once having declared him elected, it was not within the competence and jurisdiction of the Returning Officer to recount the ballot papers and to declare Ram Niwas elected.

3. The election petition was submitted on 21-2-1978. In the election petition the grounds for recount were enumerated in paras 8 to 10 of the election petition which are reproduced as under : -- (Matter in Hindi omitted -- Ed.)

4. The non-petitioner before the learned Munsiff in reply to paras 8 to 10 of the election petition submitted as under: -- (Matter in Hindi omitted--Ed.)

5. 5-4-1978 was fixed up for framing of the issues. However, in the meantime, Sardar Singh submitted an application on 18-3-1978, praying for recount of the votes. Paras 2 to 4 of the petition praying for recount are reproduced as under; -- (Matter in Hindi omitted -- Ed.)

6. Ram Niwas filed a reply on 5-7-1978. Reply to paras 2 to 4 is as under: -- (Matter in Hindi omitted --Ed.)

7. Learned Munsiff allowed the recount of the votes and came to the conclusion that the elected Sarpanch Ram Niwas had, in fact, secured 718 valid votes only, while Sardar Singh had secured 719 valid votes. In view of this finding the learned Munsiff allowed the election petition and declared Sardar Singh elected and set aside the election of Ram Niwas as Sarpanch. It is against this decision that the present writ petition has been filed.

8. The learned counsel for the petitioner has contended that on a mere application, recount of the ballot papers cannot be ordered. His contention is that all the concise material facts have to be placed on record, and if the Tribunal or the Munsiff comes to the conclusion that on consideration of the material placed before it, a prima facie case for recount is made out. then alone, a recount could be ordered. It was contended that in the instant case,Sardar Singh did not place before the learned Munsiff the concise statement of facts on the basis of which a recount could be ordered. Reliance has been placed on Ram Sewak v. H.K. Kidwai, AIR 1964 SC 1249; Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773; Jitendra Bahadur v. Krishna Behari. AIR 1970 SC 276 and Bhabhi v. Sheo Govind, AIR 1975 SC 2117. Reliance was also placed on Ganga Ram v. Jeevan Ram, 1970 Raj LW 348.

9. On behalf of the non-petitioner Sardar Singh, it was contended that looking to the facts and circumstances of the case, the learned Munsiff was justified in ordering recount of the votes. It was also contended that the recount has been done in a valid manner and according to the procedure laid down for the purpose. On behalf of the non-petitioner, reliance has been placed on Amarsingh v. Munsif Magistrate, Jodhpur, 1967 Raj LW 224. Shiv Kishan v. Radha Kishan, 1968 Raj LW 30 and Vasudeo v. Ram Kishan, 1972 Raj LW 7 : (AIR 1972 Raj 74),

10. Rule 38 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 provides that the votes shall be counted by or under the supervision of the Returning Officer and each candidate shall have a right to be present at the time of counting. It further provides that no other person shall be allowed to be present at the counting of votes except those whom the Returning Officer may appoint to assist him in the task. The Returning Officer shall allow each candidate a reasonable opportunity to inspect, without handling, the ballot papers which he considers to be liable to rejection. It also provides that any candidate present at the counting may, at any time during the counting of votes, request the Returning Officer to recount the ballot papers of all or any of the candidates including himself and the Returning Officer shall thereupon recount the same.

11. Section 83 of the Representation of People Act, 1951 provides that an election petition shall contain a concise statement of material facts, on which the petitioner relies. Section 97 deals with recrimination when the seat is claimed. Though, the provisions of the Representation of People Act, 1951 do not apply to the election petitions under the Rajasthan PanchayatAct, 1953, yet, the principles embodied in Sections 83 and 97 of the Representation of the People Act, 1951 shall apply on the principles of equity, good conscience and justice,

12. In Ram Sewak v. H.K. Kidwai, AIR 1964 SC 1249, it has been held as under:--

'An order for inspection may not be granted as a matter of course, having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled:

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary,

But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas, The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly; if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. The rules for the conduct of elections clearly show that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes, and to demand a recount. It is in the light of the provisions of Section 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the tune of counting, of watching and of claiming a re-count that the application for inspection must be considered.'

13. In Jagjit Singh v. Giani Kartar Singh AIR 1966 SC 773, it has been held as under :--

'Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by Clause (a), the powers which are vested in a Court under the Civil P. C. when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies, and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted would not serve the purpose which Section 83(1)(a) has in mind. An application made for inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of j ustice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting, it may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. No hard and fast rule can be laid down in this matter for, attempt to lay down sucha rule would be inexpedient and unreasonable.

The scheme of the rules prescribed in Part V of the Conduct of Election Rules, 1961 emphasises the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts.

14. In Jitendra Bahadur v. Krishna Behari, AIR 1970 SC 276. it has been held as under:--

'The basic requirements to be satisfied before an Election Tribunal can permit the inspection of ballot papers, are (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case and (2) the Tribunal must be prima facie satisfied that in order to decide the dispute and to, do complete justice between the parties, inspection of the ballot papers is necessary. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis lor the allegations made in the petition. If an election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts when the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the unsuccessful candidate cannot afford the necessary basis.

Similarly, when the petitioner does not state in the election petition that any of the counting agents appointed by the unsuccessful candidate or his election agent in accordance with the rules had been refused admission to the place 'of counting mere allegationthat the returning officer did not permit enough number of counting agents to be appointed is an extremely vague allegation. Under Section 47 of the Representation of the People Act, 1951, a contesting candidates or his election agent may appoint in the prescribed manner one or more persons. But not exceeding such number as may be prescribed by the rules, to be present as his counting agent or agents at the counting bf votes and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the Returning Officer. Rules framed under that Act prescribe the number of counting agents that a candidate may appoint. The form of the notice required to be given under Section 47 of the Act is given in the rules. The appointment of the counting agents is to be made in the prescribed form in duplicate, one copy of which is to be forwarded to the Returning Officer while the other copy should be made over to the counting agent. Rules also provide that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the Returning Officer the second copy of the instrument of his appointment after duly completing the signing the declaration contained therein. Hence, the mere allegation that the Returning Officer did not permit enough number of counting agents to be appointed cannot afford the necessary basis.

Similarly, as to the rejection of thevotes polled in favour of the unsuccessful candidates, under the rules before, a vote is rejected the agents ofthe candidates must be permitted toexamine the concerned ballot paper.Therefore it is quite easy for them tonote down the serial number of the concerned ballot papers. Therefore if theelection petition is silent as to theinspection of the ballot papers or whether the counting agents had noteddown the serial numbers of those ballot papers or whether those agentsraised any objection relating to thevalidity of those ballot papers; if sowho those agents are and what arethe serial numbers of the ballot papersto which each one of them advancedtheir objections; the material facts required to be stated, are not satisfiedand hence - scrutiny of ballot papersshould not be ordered.'

15. In Bhabhi v. Sheo Govind, AIR 1975 SC 2117, it has been held as under:--

'Before the Court can order inspection of ballot papers, in an election petition the following conditions are imperative:

(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts:

(3) The Court must be prima facie satisfied on the material produced before the Court regarding the truth of the allegations made for a recount.

(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties.

(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void and

(6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out material.

If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper.'

16. In Ganga Ram v. Jeevan Ram 1970 Raj LW 348, it has been held that Rule 80 of the Rajasthan Panchayat and Nyay Panchayat Election Rules applies equally to the petition whether by defeated candidate or by voter. It was, however, held that the voters must give particulars as envisaged in Rule 80 of the Rajasthan Panchayat and Nyay Panchayat Election Rules, 1960.

17. On behalf of the non-petitioner Sardar Singh reliance has been placed on Amar Singh v. Munsif Magistrate, Jodhpur, 1967 Raj LW 224, wherein it has been held that the candidates inPanchayat Election being generally illiterate some vagueness inconsequential particularly does arise, where opposite party does not raise any objection in this .regard. In such circumstances, the Tribunal may call for better particulars. It was further held that where the Tribunal was satisfied as to the sufficiency for a case of recount, High Court will not interfere in writ jurisdiction.

18. In Shiv Kishan v. Radha Kishan, 1968 Raj LW 30, it was held that even though there is no provision corresponding to that contained in Section 97 of the Representation of the People Act, 1951 it is open to the returned candidate to plead in his written statement that some invalid votes were counted for the alternative candidate and some valid votes cast in his favour were improperly rejected. If he gives precise particulars so as to make a prima facie case for re-counting the votes of the alternative candidate and his rejected votes the Tribunal will be bound to recount them. But he cannot ask for a recount of those votes unless he takes the requisite pleas in his written statement.

19. In Vasudeo v. Ram Kishan, (AIR 1972 Raj 74) it was held that while it is desirable that an election petitioner should specify the numbers of ballot papers which he wants to be counted in his favour to be rejected against the opposing candidate or candidates, this cannot be said to be the sine qua non for making out a case for the inspection or scrutiny of ballot papers in each and every case. By and large, it should depend on the facts and circumstances of the particular case in hand. Where there are quite a large number of votes about which a challenge is made then it may be expected of the party to disclose the numbers of such ballot papers in order to avoid fishing or roving inquiry in the ballot boxes, but where the number of ballot papers to be counted is indicated with sufficient particularity otherwise and the number is not large the mere fact that the numbers of the ballot papers have not been given in the election petition, may not disentitle a party from asking for the scrutiny of the ballot papers,

20. Lastly, the learned counsel for the petitioner relied on Janardan Dattuppa Bondre v. Govindprasad Shivprasad,1979 UJ (SC) 532: (AIR 1979 SC 1617), wherein it was held that the High Court should not have declined to include in the appellant's total votes the 250 votes cast in favour of the appellant but included in the packet of Behaker, If those votes are included in the appellant's total, the appellant secures the highest number of votes and is entitled to be declared elected,

21. The symbol of cycle was allotted to Sardar Singh and the symbol of horse was allotted to Ramniwas.

22. After hearing arguments of the parties on the application of Sardar Singh for recount of the votes, the learned Munsiff passed the order on 24-8-1978 for summoning the ballot papers and the relevant record from the Returning Officer,

23. Rule 80 of the Rajasthan Panchayat and Nyay Panchayat Elections Rules, 1960 provides that the petition shall contain a concise statement of the material facts on which the petitioner relies. This provision is pari materia with Section 83(1)(a) of the Representation of the People Act, 1951. There it is also provided that an election petition shall contain a concise statement of material facts on which the petitioner relies,

24. The learned counsel for the petitioner has vehemently contended that the strict view which the Supreme Court has taken in Jitendra Bahadur v. Krishna Behari, AIR 1970 276 and Bhabhi v. Sheo Govind, (AIR 1975 SC 2117) should not be adopted for disposing of the election petitions of a Panch or a Sarpanch under the Rajasthan Panchayat Act, 1953. He has placed reliance on Amar Singh v. Munsiff Magistrate, Jodhpur, 1967 Raj LW 224 wherein it was held as under :

'The conditions prevailing in a Panchayat election are different from those prevailing in a parliamentary election. In the latter the candidates are generally literarte and are assisted by a number of agents most of whom are lawyers. In a parliamentary or assembly election therefore the election petitioner is in the position of giving much better particulars than in a Panchayat election. At the counting of votes in a Panchayat election only the candidate is allowed to be present vide Rule38 (3), Candidates for the office of Sarpanch possess the qualification of being barely literate in Hindi, They are not in a position to note down the serial number of any ballot paper, which has been wrongly accepted or wrongly rejected for the simple reason that these serial numbers are printed in English figures. The candidates for the office of Panch are mostly illiterate. If the Tribunal is satisfied on the basis of material before it that a prima facie case for recount is made out, then this Court cannot interfere in the exercise of its writ jurisdiction with the decision of the Tribunal to recount the votes. The particulars which can be furnished by an election petitioner with regard to the improper acceptance or rejection of votes naturally depend on the facts and circumstances of a particular case. The Tribunal has jurisdiction to inspect the ballot papers in view of the provision contained in Rule 78 (d) (i). This is further made clear by Rule 42 (2), Under Order 16, Rule 6, Civil P.C. the Tribunal can order the production of the ballot papers by the authority having custody of them. In disposing of an election petition the Tribunal is clothed with the powers of the civil court by virtue of Rule 84.'

25. Rule 86 of the Rajasthan Panchayat and Nyay Panchayat Election Rules, 1960 provided the manner of challenging the elction under these Rules. This Rule 86 is pari materia on substantial features with Sections 100 and 101 of the Representation of the People Act, 1951. In Amarsingh v. Munsiff Magistrate, Jodhpur 1967 LW 224, a distinction has been sought to be drawn in parliamentary elections and the conditions prevailing in Panchayat elections. The law laid down by the Supreme Court, by virtue of Article 141 of the Constitution of India, is the law of the land. As the provisions in the Representation of the People Act, 1951 are pari materia with the Rule 87 of the Rajasthan Panchayat and Nyay Panchayat Election Rules, 1960, the yardstick laid down by the Supreme Court in Jitendra Bahadur v. Krishna Behari AIR 1970 SC 276 and Bhabhi v. Sheo Govind, AIR 1975 SC 2117 shall have to be followed.

26. Sub-rule (3) of Rule 38 of the Rajasthan Panchayat and Nyay Panchayat Election Rules, 1960 providesthat votes shall be counted by or under the supervision of the Returning Officer and each candidate shall have a right to be present at the time of counting. The Court, in my considered opinion, cannot take judicial notice of the fact that a Panch or Sarpanch in the Gram Panchayat would be hardly literate, and would not be able to take down the numbers of ballot papers or would not be in a position to lay foundation in the election petitition on the basis of which a recount could be done,

27. Sub-rule (6) of Rule 38 provides that any candidate present at the counting may, at any time during the counting of votes, request the Returning Officer to recount the ballot papers of all or any of the candidates including himself and the Returning Officer shall thereupon recount the same. In view of this provision of law, the contention on behalf of the respondent that recount could not have been done by the Returning Officer loses all significance.

28. Before making a recount of the ballot papers the learned Munsiff did not record any order that he was satisfied that in the special circumstances of the case the recount was necessary in the interest of justice. By not doing so, the secrecy of the ballot papers which is sacrosanct could not be maintained. The Court must be prima facie satisfied on the material produced before it about the truth of the allegations made for a recount and a recounting cannot be made only with a view to fish materials for declaring the election to be void or for indulging in roving inquiry.

29. In view of the authoritative pronouncement of the Supreme Court, I have no hesitation in holding that the learned Munsiff erred in law in ordering recounting of the ballot papers without first recording that he was prima facie satisfied on the material produced before him regarding the truth of the allegations made for a recount.

30. For the reasons stated above, the writ petition is allowed, the order of the learned Munsiff dated 18-8-1979 is set aside and the election petition is dismissed.

31. Looking to the facts and circumstances of the case, there would be no order as to costs.